Federal Court awards Eli Lilly $106 million in patent damages

23 January 2015

Eli Lilly and Co. et al. v. Apotex Inc. 2014 FC 1254

On January 23, 2015, the Federal Court released its decision regarding the quantum of damages recoverable by Eli Lilly in an action relating to Apotex’s infringement of patents related to the manufacture of the antibiotic cefaclor.

Eli Lilly was awarded damages, including those related to lost profits on lost sales and prejudgment interest at the average rate of Lilly’s overall profit rate compounded annually, for the 17 years between the commencement of the proceeding and the final disposition on the quantum of damages. The quantum of the final award including prejudgment interest totalled to $106,274,649.00.

The Court fully rejected Apotex’s argument that damages should be reduced because Apotex could have hypothetically avoided infringement if it had known it was going to lose the liability case (the “non infringing alternative” or NIA defence).

The action commenced in 1997, damages were bifurcated and the liability phase was decided in 2008 with Justice Gauthier holding that Apotex infringed at least one valid claim in each of the eight separate patents asserted by Eli Lilly.

Eli Lilly was represented by Gowlings lawyers Anthony Creber, Isabel Raasch and Marc Richard.


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